Man Is Convicted in Killing of Gay Student

By MICHAEL JANOFSKY

Published: November 4, 1999

DENVER, Nov. 3—
A jury in Laramie, Wyo., today found a man guilty of second-degree murder in the killing of a gay University of Wyoming student last year. By also finding him guilty of robbery and kidnapping, the jury enabled prosecutors to seek a death penalty.

The same jury of seven men and five women will determine the punishment for the defendant, Aaron J. McKinney, in the second phase of the trial in Wyoming District Court, starting on Thursday when lawyers will begin presenting evidence to argue for and against execution.

The verdict, which came after 10 hours of deliberations over two days, brought a swift end to a case that has been watched closely because of the brutality of the crime and the sexual orientation of the victim, Matthew Shepard, a 21-year-old political science student. Mr. Shepard was found on Oct. 7, 1998, unconscious and tied to a fence on the prairie outside Laramie. He was taken to a hospital with severe head wounds and died five days later.

A second man, Russell A. Henderson, 22, pleaded guilty last spring and is serving a life sentence in prison without possibility of parole.

''I think it's the first murder of its kind that really struck people on a national level, touching people well beyond the gay community,'' said Cathy Renna, a spokeswoman for the Gay and Lesbian Alliance Against Defamation, one of several gay groups that expressed satisfaction with the verdict.

Jeffrey Montgomery, director of another gay group, the Triangle Foundation, which is based in Michigan, said the verdict indicated that ''there is really no excuse for this kind of barbarism.''

Mr. McKinney, 22, who confessed to beating Mr. Shepard after he and Mr. Henderson lured him out of a Laramie bar, was offered no deal by prosecutors. In a trial that lasted only seven days, they tried to convince jurors that Mr. McKinney had intended to kill Mr. Shepard after he and his accomplice robbed him of $20.

The jury rejected the element of intent, which is necessary for a first-degree conviction and automatic consideration for execution. But finding Mr. McKinney guilty on two other felony charges in Wyoming established aggravating factors that elevate the options of punishment to include death by lethal injection.

A Wyoming prosecutor not involved in the case, Mark Voss, said that if Mr. McKinney had been found not guilty on the other two charges he would have faced only a prison term of 20 years to life.

The prosecutor said that by rejecting first-degree murder it was unlikely that the jurors would favor the death penalty for Mr. McKinney.

''Whatever happens, they have said he did not intend, at least initially, to kill Mr. Shepard,'' Mr. Voss said. ''Plus, he's very young, is slightly built, has no significant violent past. He's not your serious three-time loser serious felon, and that's a big assist.''

Mr. McKinney's lawyers were denied the option of presenting a ''gay panic'' defense, a strategy intended to gain sympathy from the jury by offering evidence that the defendant had been so repulsed by a homosexual advance that he automatically resorted to violence.

In the opening arguments, one of Mr. McKinney's lawyers, Jason Tangeman, said his client had been sexually abused as a child and that after Mr. Shepard made sexual advances toward him Mr. McKinney erupted with ''emotional rage.''

But Judge Barton R. Voigt ruled that any sexual abuse that Mr. McKinney suffered as a child that might have led him to react violently to Mr. Shepard would not be admissible during the trial. Judge Voigt said that defense amounted to pleading temporary insanity or diminished capacity, neither of which is a basis for defense under Wyoming law.

That left Mr. McKinney's lawyers the narrower grounds to argue that the beating had been spurred by drug addiction and alcohol abuse.

Dion Custis, a lawyer for Mr. McKinney who concluded the defense case before the jury, said in closing arguments on Tuesday: ''What happened here was beyond comprehension. It's disgusting. It's tragic. But it's not premeditated murder.''

If Mr. McKinney were to be sentenced to death, he would join two other Wyoming prisoners on death row. Since capital punishment was declared constitutional by the United States Supreme Court in 1976, Wyoming has executed only one criminal, in 1992.

William K. Dobbs, a lawyer and a leader of the gay rights group Queerwatch, said putting Mr. McKinney to death would do gay men and lesbians a disservice.

''The death penalty is wrong in all cases,'' Mr. Dobbs said, reflecting a split among gay men and lesbians on capital punishment. ''It will not bring back Matthew Shepard. The eye-for-an-eye mentality is going to leave this country blind.''

Photo: Afton Timothy, center, was helped by her family and friends yesterday as she left the courthouse in Laramie, Wyo., after her stepbrother, Aaron J. McKinney, was convicted of murder in the killing of Matthew Shepard. (Reuters)